When you appoint an Attorney, you are giving them the power to act as though they are you, the ‘donor’ of the Power of Attorney. For example, dealing with bank transfers when usually only the named person on the account could do this.
In most cases, your attorney’s only take on their responsibilities when you no longer have the physical or mental capacity to undertake them yourself. But you can choose to do this early and hand over the responsibilities sooner, if that works best for you.
How many Lasting Power of Attorney’s should I have?
We recommend that you appoint more between 2-4 Attorneys, so you have enough back-ups, should some of your chosen Attorneys be unable to fulfil their duties or pass away before you. Attorneys can act jointly, severally or jointly and severally.
Wherever practical, the Attorneys should be well known to the donor, in order to carry out their wishes to the best of their abilities.
What are the key responsibilities of a Lasting Power of Attorney?
Being an Attorney is an important role and you have legal responsibilities to undertake when acting as an Attorney. You may be asked to be an Attorney for the donors Health and Welfare, for their Property and Affairs or perhaps both. Below is a brief overview of the obligations in being an Attorney:
- Act in the donor’s best interests and take reasonable care when making decisions on their behalf
- Act in accordance with the terms set out in the Lasting Power of Attorney
- Helping the donor to make their own decisions where possible, rather than simply taking control
- You will be required to sign a statement confirming that you understand your legal responsibilities as an attorney when you are appointed
- If you fail to perform your duties properly, you may be ordered to compensate the donor for any losses incurred or not acting in the donor’s best interest
- If you ill-treat or wilfully neglect the donor, you could face criminal charges
I’ve been asked to be a Lasting Power of Attorney, what should I do?
If you have been asked to be an Attorney, you should arrange a time to meet with the donor to discuss their wishes and what they would like you to do for them, should they lose capacity.
If you are an Attorney for Property and Affairs, the donor should discuss with you how they want their property handled. This can include paying bills, handling bank accounts, personal belongings etc.
If you are an Attorney for Health and Welfare, you will need to be informed of the donor’s exact wishes concerning their welfare. They should advise you if applicable, the type of care home they would like to live in, what their views are regarding life support, who their doctor is etc.
The donor may also specify or provide guidance in their Power of Attorney to help their Attorney’s fulfil their role. If you are not a family member of the donor, it is always advisable to consult with the donor’s family and loved ones too, as this helps you to make a fully informed decision on behalf of the donor.
Can I refuse to be a Lasting Power of Attorney?
Yes. You may refuse to be an Attorney if you wish to, but the donor (creator) of the Power of Attorney should discuss this with you before you are appointed. It should never come as a surprise!
Being an Attorney is a difficult and often emotional role, but Redwood Financial in Hampshire are always at hand to offer help and support, should you need it.
Can I stop being a Power of Attorney?
Yes. If you no longer wish to be an attorney, you can ‘disclaim’ the role. If the LPA has not yet been registered, you should give formal notice to the donor. If the LPA has been registered, you must contact the Office of the Public Guardian.
A Lasting Power of Attorney does not give you unlimited authority to make decisions on behalf of the donor and, depending what type of Lasting Power of Attorney has been put in place, it will determine what you can make decisions about.
You could be appointed Attorney on one or more Lasting Powers of Attorney:
- A Property and Financial Affairs Lasting Power of Attorney allows the Attorney to make decisions about finances and property. This includes your house, investments, pensions and savings.
- A Health and Welfare Lasting Power of Attorney allows the Attorney to make decisions about the donor’s healthcare and personal welfare. This includes all medical treatment and decisions.
- A General Power of Attorney exists to cover for a specific event or period when a donor finds they need to give control of financial and legal matters to others. For example: During the current COVID-19 crisis, many people found themselves self-isolating and relying on others to do the things they would normally do themselves. A General (or ‘Ordinary’) Power of Attorney form is a legal document that allows this to be done. It could be used for simple tasks like writing cheques and paying bills. It is for a temporary period and ends at the end of the agreed period or if the donor loses mental capacity.
Acting as an Attorney under a Property and Financial Affairs Lasting Power of Attorney does not give you the authority to make Health and Welfare decisions – and vice versa – though you can be appointed as an Attorney under both kinds of Lasting Powers of Attorney.
When acting under a Property and Financial Affairs Lasting Power of Attorney, the Attorney’s must keep accurate accounts detailing what has been done. All matters relating to the donors and the Attorney’s Finances and Possessions must be kept separated.
Attorneys can seek expert advice about a decision, for example about the donor’s investments. However, the decision making cannot be delegated to a non-attorney unless explicitly authorised through the Lasting Power of Attorney.
An Attorney can apply to the Court of Protection if a decision needs to be taken outside of their powers. For example: there is a need to make large gifts as part of an Inheritance Tax Planning strategy, this would need approval from the Court of Protection prior to an Attorney with a Property & Finance Power of Attorney can act.
An Attorney ceases to hold Power of Attorney upon the donor’s death and must no longer act on behalf of the donor. The Power of Attorney should be sent with a copy of the death certificate to the Office of the Public Guardian.
Other restrictions on the role of a Lasting Power of Attorney
A Lasting Power of Attorney must have been registered with the Office of the Public Guardian before it can be used. We always recommend registering the Power of Attorney as soon as it has been signed. It can take several weeks to register which will delay being able to use the Power of Attorney should the donor loose mental capacity to make their own decisions.
Decisions regarding ‘life-sustaining’ treatments can only be made by an Attorney if the Health & Welfare Power of Attorney specifically gives this authority.
An Attorney may be excluded from making certain decisions through the terms of the Power of Attorney, such as making gifts.
If multiple Powers of Attorney exist, or multiple Attorneys have been appointed by the donor, the Attorney’s will need to liaise and co-operate where authorities may overlap, or where collective agreement is required.
An Attorney appointed to only act if the donor lacks mental capacity, must check whether the donor has the capacity on a decision-by-decision basis. For example, the donor might be capable of making small decisions (such as what to wear), but not complex decisions about where to live or managing financial issues.
In each case, the starting premise should be that the donor has the capacity to make a decision. The Attorney must look for ways to help the donor make decisions, rather than just taking control.
How can I tell if someone has the mental capacity to make a decision?
There are some fairly simple principles you can apply when assessing if someone has the mental capacity to make decisions:
- Is the donor’s mind or brain impaired or disturbed in some way that causes them to lack mental capacity?
- Will this lack of mental capacity prevent the donor making decisions at the time it needs to be taken and that is in their best interests?
- Simply disagreeing with you, or making foolish or eccentric decisions, does not mean that the donor lacks capacity!
- If you are unsure whether the donor has capacity, you should get an expert opinion (e.g. from a doctor).
More information on LPAs
Redwood Financial is one of the South’s leading Investments, Pensions, Wills, Trusts & Estate Planning providers and we are dedicated to helping families to grow, protect and enjoy their wealth. With our unrivalled knowledge of Estate Planning, Lasting Powers of Attorney, Probate, Pensions, Savings & Investments, we can advise on any situation.
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